EncoreStores Rewards VIP Program
NOTE: THE TERMS CONTAIN A DISPUTE RESOLUTION AND BINDING ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH EncoreStores. The right and obligation to arbitrate under this clause shall extend to all claims by or against any officer, director, employee, agent, shareholder, member, partner, affiliate, parent corporation, subsidiary, joint venturer, or contractor of a party hereto.
MODIFICATION OF THE TERMS
EncoreStores reserves the right to amend the Terms, at any time and without prior notice. If we make changes, we will revise the date at the top of the Terms. Your continued use of the Sites or our services following the posting of any changes to the Terms means you accept such changes. If the amended Terms are not acceptable to you, your only recourse is to stop using the Sites and EncoreStores services.
LINKS TO THIRD PARTY SITES
The Sites may contain links to or otherwise enable access to third-party websites, including social media sites (“Linked Sites”). The Linked Sites are not under the control of EncoreStores and EncoreStores is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. EncoreStores is providing these links to you only as a convenience, and EncoreStores is not responsible for the availability or content of Linked Sites or for any viruses or other damaging elements encountered in linking to a Linked Site. In addition, providing links to these sites is not an endorsement or approval by EncoreStores of the organizations sponsoring the sites or their products or services.
As a condition of your use of the Sites, you expressly agree not to use the Sites in any of the following ways (however note that these are only examples and the list below is not a complete list of everything that you are not permitted to do):
Use the Sites for any purpose that is unlawful or prohibited by the Terms;
Use the Sites in any manner which could damage, disable, overburden, or impair the Sites or interfere with any other party’s use and enjoyment of the Sites;
Attempt to gain unauthorized access to EncoreStores’s systems or networks connected to EncoreStores through hacking, password mining or any other means;
Use any data mining, robots, or similar data gathering or extraction methods in connection with the Sites;
Obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Sites;
Use any material or information, including images or photographs, which are made available through the Sites in any manner that is not expressly permitted in the Terms or that infringes any copyright, trademark, patent, trade secret or other proprietary right of any party;
Use the Sites to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; or
Use the Sites for any other purposes that are deemed objectionable by EncoreStores or that are not expressly permitted by the Terms.
PRICING AND AVAILABILITY
The Sites may contain information about EncoreStores products and services, including, but not limited to, product descriptions, pricing, offers, availability and promotions. EncoreStores may change this information concerning products and services at any time without notice, and the availability of certain products and services may be limited at certain stores.
If you provide feedback, suggestions, ideas or other content to EncoreStores in connection with the Sites (including any information or content provided on a message board or other communication tool accessible via the Sites or in connection with the EncoreStores Rewards Program) (“Feedback”), you grant EncoreStores a perpetual, worldwide, fully transferable, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute and display the Feedback in any manner and for any purpose, without any payment to you. You acknowledge and agree that Feedback will not be considered confidential information. By submitting Feedback to us, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to us and enable us to use such Feedback.
RACETRAC INTELLECTUAL PROPERTY RIGHTS
The trademarks, service marks, and logos (the “Trademarks”) used and displayed on the Sites are registered and unregistered Trademarks of EncoreStores and others. Nothing set forth in these Terms grants to you any license or right to use any Trademark displayed on the Sites, without EncoreStores’s prior written consent. Under no circumstances will you acquire any ownership rights or other interest in any content by or through your use of the Sites.
The Sites contain copyrighted material, trademarks, service marks, trade dress and other proprietary content, including but not limited to, the information, text, software, sound, photographs, buttons, images, logos, audio clips, video materials, features, graphics and other materials on or within the Sites, and the entire selection, coordination, arrangement and “look and feel” of the Sites are copyrighted as a collective work under United States copyright laws (collectively, “Intellectual Property Rights”). Neither the Terms nor your use of the Sites transfers any right, title or interest in the Sites to you, and EncoreStores and its third-party licensors retain all of its and their respective Intellectual Property Rights in and to the Sites. Any rights not expressly granted herein are reserved.
EncoreStores reserves the right, in its sole discretion, to terminate your access to the Sites and the related services or any portion thereof at any time, without notice.
You agree to defend, indemnify and hold harmless EncoreStores, its affiliates and its and their respective officers, directors, shareholders, employees and agents, from and against any and all claims, demands, liabilities, damages, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs of litigation) arising out of or in connection with your breach of the Terms, your Feedback, your use of or access to the Sites or any services or functionality accessed via the Sites (including the EncoreStores Rewards Program and the EncoreStores Rewards VIP Program), and your violation of any law or the rights of any third party. EncoreStores reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with EncoreStores’s defense of any such claim.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES and any programs, functionality, or SERVICES accessed via the Sites (including the EncoreStores Rewards Program and the EncoreStores Rewards VIP Program) ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, EncoreStores AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE SITES OR SERVICES, OR THAT USE OF THE SITES OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. ADVICE RECEIVED VIA THE SITES SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.
LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EncoreStores AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITES or any programs, functionality or services accessed via the Sites WITH THE DELAY OR INABILITY TO USE THE SITES or any programs, functionality or services accessed via the Sites, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITES OR OTHERWISE ARISING OUT OF THE USE OF THE SITES or any programs, functionality or services accessed via the Sites, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF EncoreStores OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITES or any programs, functionality or services accessed via the Sites, OR WITH ANY OF THE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITES and any programs, functionality or services accessed via the Sites, or OTHER SERVICES PROVIDED BY EncoreStores. If, notwithstanding the other provisions of the Terms, EncoreStores is found to be liable to you or any third party for any damage or loss which arises out of your use of the Sites, the Rewards PROGRAM, or any content or services provided or made available in connection THEREWITH, EncoreStores’s liability shall in no event exceed the greater of (a) THE AMOUNT YOU HAVE PAID EncoreStores IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S), or (b) $100.00.
YOU HEREBY AGREE AND CONSENT TO WAIVE YOUR RIGHT TO PURSUE A CLAIM BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING.
You agree that any dispute arising out of or relating in any way to your use of the Sites (and any programs, functionality, or services accessed via the Sites) requires that such claim be resolved exclusively by confidential binding arbitration except that, to the extent you have in any manner violated or threatened to violate EncoreStores’s Intellectual Property rights, EncoreStores may seek injunctive or other appropriate relief. The arbitration shall be conducted before three (3) neutral arbitrators Cobb County, Georgia, U.S.A., in accordance with the rules of the American Arbitration Association (“AAA”), as then in effect. No claims of any other parties may be joined or otherwise combined in the arbitration proceeding. If you initiate arbitration, you will be responsible for paying a filing fee. The arbitrator will have the authority to waive this filing fee if you can prove financial hardship. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys’ fees without regard to which party is deemed the prevailing party in the arbitration proceeding. Except for punitive and consequential damages (which may not be awarded), and subject to these Terms, the arbitrators shall be authorized to award either party any provisional or equitable remedy permitted by applicable law. The parties shall equally share all AAA charges and fees associated with the arbitration.
BECAUSE THE USE OF THE SITES REQUIRES THE ARBITRATION OF ANY CLAIMS OR DISPUTES EXISTING BETWEEN THE PARTIES, NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATORS’ DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT EITHER PARTY WOULD HAVE IF SUCH PARTY WENT TO COURT, INCLUDING WITHOUT LIMITATION THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION.
The award of the arbitrators may be enforced in any court having jurisdiction thereof. Each party hereby consents: (a) to the non-exclusive jurisdiction of the state or federal courts located in Cobb County, Georgia for any action (i) to compel arbitration; (ii) to enforce any award of the arbitrators; or (iii) at any time prior to the qualification and appointment of the arbitrators, for temporary, interim or provisional equitable remedies; and (b) to service of process in any such action by registered mail or any other means provided by law. Should this Dispute Resolution section be deemed invalid or otherwise unenforceable for any reason, it shall be severed and the parties agree that exclusive jurisdiction and venue for any claims will be in state or federal courts in Cobb County, Georgia and each party hereby irrevocably and unconditionally waives any defense related to personal jurisdiction, process or venue.
The Terms and all claims or causes of action related to or arising in connection with the Terms shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to its principles of conflicts of laws.
Unless otherwise specified herein, the Terms constitute the entire agreement between you and EncoreStores with respect to the Sites and services (including the Rewards Program) and the Terms supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and EncoreStores with respect thereto.
A printed version of the Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that the Terms and all related documents be drawn up in English.
SURVIVAL OF TERMS
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of these Terms shall survive such expiration or termination.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
EncoreStores’s performance of the Terms is subject to existing laws and legal process, and nothing contained in the Terms is in derogation of EncoreStores’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Sites or information provided to or gathered by EncoreStores with respect to such use. The delay or failure by EncoreStores to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. The Terms, and any rights and licenses granted hereunder, may not be assigned or transferred by you (and any attempt to do so shall be null and void). EncoreStores may assign its rights and/or delegate its duties under the Terms without restriction and without your consent or notice to you.
NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Pursuant to Title 17, United States Code, Section 512(c)(2) (the “DCMA”), notifications of claimed copyright infringement under United States copyright law should be sent to EncoreStores’s designated agent at legalnotices@EncoreStores.com. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE.
EncoreStores will, upon receiving proper notice as set forth below, use commercially reasonable efforts to investigate notices of copyright infringement and take appropriate action under the DMCA. When notifying EncoreStores of the alleged copyright infringement, please include all of the following information:
1.a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is claimed to have been infringed;
identification of the copyrighted work alleged to have been infringed;
a description of the material that is claimed to be infringing and information sufficient to locate the material on the Sites;
information sufficient to contact the complaining party, such as a physical address, telephone number, and, if available, an electronic mail address;
a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on the copyright owner’s behalf.
If material is believed in good faith by EncoreStores to infringe a copyright or otherwise violate any intellectual property rights, EncoreStores will remove or disable access to any such material.